Freedom of Association Programme International Training Centre of the ILO

1. International LabourStandards and Processes on Freedom of Association:The added value of the ILO framework Freedom of Association Programme International Training Centre of the ILO

2. Presentation outline • The sources and content of international guarantees on Freedom of association: • Principles and standards • The international means of promoting their implementation: • Processes and procedures

3. I. The sources and content of International labour standards on Freedom of association Formal instruments and Authoritative pronouncements

4. Sources of FOA Protections • They arise from domestic standards: • In State constitutions • In general human rights and labour laws • In rights to collective bargaining and supporting legislative framework.

5. Sources of FOA Protections • They arise from international standards: • As Members of the ILO, States have constitutional obligations to promote and effectively realize FOA rights; in addition: • States have obligations as signatories to relevant ILO and UN conventions which recognize and affirm their commitment to FOA • States may have additional obligations as signatories of regional conventions.

6. Freedom of Association:InternationalSources(Main Instruments) The sources of International Labour Standards on FOA: General Overview

7. The right to freedom of association: International instruments • Universal Declaration of Human Rights (UDHR), art. 20(1), (2) and (4). • International Covenant on Civil and Political Rights (ICCPR), art. 22 (1), (2) and (3). • International Covenant on Economic, Social and Cultural Rights (ICESCR), art. 8 (1), (2) and (3).

8. The right to freedom of association:examples of Regional instruments • African Charter on Human and People’s Rights, 1981 (AfCHPR), art 10 (10 and (2). • American Declaration of the Rights and Duties of Man, 1948 (ADRD), art. 22. • European Convention for the Protection of Human Rights and Fundamental Freedoms, 1950 (ECHR), art. 11 (1) and (2).

9. The right to freedom ofassociation: ILO instruments • ILO Constitution (binding) • ILO Tripartite Declarations (promotional, persuasive) • ILO Conventions (binding if ratified, if not persuasive, interpretative) • ILO Recommendations (persuasive, interpretative).

10. FOA: ILO Constitution • The Preamble of the Constitution of the ILO expressly declares “recognition of the principle of freedom of association” to be one of the means of improving the conditions of the workers and of ensuring social justice, which is a precondition to universal and lasting peace.

11. FOA: Declaration of Philadelphia • In 1944, the International Labour conference reaffirmed as one of the principles on which the ILO is based that “freedom of expression and association are essential to sustained progress”. • The Declaration of Philadelphia also affirms the need to promote “the effective recognition of the right to collective bargaining”. • The terms of the Declaration of Philadelphia were incorporated in the Constitution of the ILO in 1946.

12. Convention 87:Freedom of Association and Protection of the Right to Organize, 1948. Asserts the principle of independence of trade unions’ organisations from public authorities. Convention 98:Right to Organise and Collective Bargaining, 1949. Completes the guarantees of independence in C.87 by focusing on the relations between workers organisations and employers. Freedom of Association: Fundamental Conventions

13. Additional ILO instruments onFOA & CB • C. 11: The Rights of Association and Combination of Agricultural Workers Convention, 1921. • C. 135: Workers’ Representatives Convention, 1971 • R. 143: Workers’ Representatives Recommendation, 1971 • C. 141: Rural Workers’ Organisations Convention, 1975 • R. 149: Rural Workers’ Organisation Recommendation, 1975

14. Additional ILO instruments on FOA & CB • C. 151: Labour Relations (Public Service) Convention, 1978 • R. 159: Labour Relations (Public Service) Recommendation, 1978 • C. 154: Collective Bargaining Convention, 1981 • R. 163: Collective Bargaining Recommendation, 1981 • R. 91: Collective Agreements Recommendation, 1951

15. The meaning ofFreedom of Association:Standards(Principles, rights and obligations) The Content of International Labour Standards on FOA: General Overview

16. The dimensions of FOAfor Trade Union purposes • The essential features of FOA for trade union purposes include: • The right to freedom of association; • The right to protection of related civil liberties; • The right to organize; • The right to bargain collectively; • The right to strike; • The right to protection against acts of anti-union discrimination.

17. The notion of “organisation” • C. 87, Art. 10: definition of the term organisation: • Any organisation of workers or employers…

18. 1. The right to freedom ofassociation: basic notions • The right to freedom of association recognizes the basic human right to unite in order to pursue or achieve a common purpose, whether for political, religious, ideological, economic, labour, social, cultural, recreational (such as sport), or professional objectives.

19. The right to freedom ofassociation: basic notions • The right to form an association is an inherent part of this right: That individuals should be able to form a legal entity in order to act collectively in a field of mutual interest or concern is one of the most important aspects of the right to freedom of association. • Accordingly, when someone joins a trade union, that person is exercising his or her right of freedom of association.

20. The right to freedom ofassociation: basic notions • Uniting protects individuals from the vulnerability of isolation. • It enables those who would otherwise be ineffective to meet on more equal terms the power and strength of those with whom their interests interact and, perhaps, conflict.

21. The right to freedom ofassociation: basic principles • The Principle of Non-interference • The importance of independence • The meaning of non-interference • The Principle of Non-discrimination • The importance of universal access: “effective enjoyment by all” • The meaning of non-discrimination: “no distinction”: • No distinction based on grounds of occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion.

22. C. 87: Public Authorities The protection covers all stages of the organization’s life:from creation to dissolution. C. 98: Employers and organizations The protection covers all stages of the relationship:from hiring to termination. Protection from Interference and Universal Enjoyment

23. The freedom of association and protection of the right to organize convention, 1948 (no. 87) • Affirms the right of all workers and employers to organize without interferencefrom public authorities. • Affirms the right of workers’ and employers’ organizations to conduct their affairs and carry out their activities without interference from public authorities. • Affirms the duty of public authorities to protect in law and in practice these freedoms, without which the other guarantees enunciated in ILO instruments would remain a dead letter.

24. The right to organize and collective bargaining convention, 1949 (no. 98) • Affirms the need to effectively protect all workers against acts of anti-union discrimination by employers or other organizations. • Affirms the right of all workers to be protected against such acts. • Affirms the right of workers’ and employers’ organizations to be protected against acts of interference by each other. • Reaffirms the responsibility of States to effectively promote of collective bargaining.

25. Workers covered byC. 87 and C. 98 • All workers covered. • Only exceptions (narrowly construed): • Armed forces and the police • C. 98: Civil servants engaged in the administration of the state, but these workers are covered by Conventions no. 151 and no. 154.

26. Covered at all timesby C. 87 and C. 98 • An ongoing protection for an ongoing right: • Freedom to associate implies not only the right to commence an association, but also to continue or terminate that association. • Freedom is characterized by theabsence of coercion or constraint. • Therefore, the safeguards against coercion or constraint must be ongoing (not time or event specific), to ensure the full enjoyment of the right to freedom of association.

27. 2. FOA and respect ofCivil liberties (1) • Absence of civil liberties removes all meaning from the concept of FOA. • Genuine, free and independent workers’ and employers’ organizations cannot develop in a climate of violence and uncertainty. • A system of democracy and respect of fundamental human rights are essential to full and genuine FOA. • The interdependence of FOA and civil liberties was reiterated in the ILO 1970 Resolution Concerning Trade Union Rights and Their Relation to Civil Liberties.

28. FOA and respect ofCivil liberties (2) • Civil liberties essential to the normal exercise of FOA rights: • The right to life and personal safety • The right to freedom and security of person from arbitrary arrest and detention • Freedom of opinion and expression • Freedom of assembly • The right to a fair trial by an independent and impartial tribunal • The right to protection of the property of workers’ and employers’ organizations.

29. FOA and respect ofCivil liberties (3) • The detention, arrest, physical threats, assaults or disappearances of leaders of workers’ and employers’ organizations for activities in connection with the exercise of their right to organize are blatant violations of FOA.

30. FOA and respect ofCivil liberties (4) • All appropriate measures should be taken to guarantee that FOA can be exercised in normal conditions. • Violations of civil liberties related to the exercise of FOA can be denounced before the ILO. • No impunity should prevail. • The absence of judgement, or excessive delay in its issuance, reinforces the climate of violence and insecurity, extremely damaging to the exercise of FOA.

31. 3. The right to organize (C.87) The right to organize rests upon the following three principles: • That no distinction are made among those entitled to the right of association • That there is no need for previous authorization to establish organizations • That there is freedom of choice with regard to membership of such organizations.

32. The right to organize: No distinction (C.87, art. 2) • The right to establish and join organizations without distinction: • All workers and employers are covered; • No distinction based on grounds of, inter alia, occupation, sex, colour, race, religion, age, residence, marital status, nationality, political opinion; • Only exception: armed forces and the police interpreted narrowly.

33. The right to organize:requirement of recognition (1) • The right to form an association may not be conditioned by a law that requires the recognition of that association by the public authorities. • Similarly, if the conditions granting registration are tantamount to obtaining prior permission from the authorities for the establishing or functioning of a trade union, this will constitute an infringement of the principles of freedom of association.

34. The right to organize:requirement of recognition (2) • A state has a right to satisfy itself that an organization’s aims and activities are in conformity with the rules laid down in legislation. • However, it must do so in a manner compatible with its obligation to ensure to everyone the enjoyment of the right to freedom of association.

35. The right to organize:requirement of recognition (3) • Recognition of the most representative organizations: • A way of striking a balance between trade union unity and fragmentation of trade union movement. • The determination of most representative trade union must be based on objective, pre-established, relevant and precise criteria. • Certain preferential rights may be granted to most representative organizations. However, other organizations should be able to continue representing their members’ interests.

36. The right to establish organizationswithout previous authorization • Legal formalities for the establishment of an organisation:Statutory and by-law formalities are acceptable as long as they ensure the normal functioning and publicity of organizations. Would be incompatible: • Long and complicated registration procedures • Discretionary power granted to public authority • Excessive minimum membership required for establishment or registration. • The recognition of the organization’s legal personality must be granted without delay if formal requirements complied with. • A right to appeal to independent courts against refusal of authorization must be provided.

37. The right to establish and joinorganizationsof one’s own choosing • The right is subject only to the rules of organizations concerned. • There must be no interference by public authorities in the articulation of the organization’s structure and composition. • The legal system’s rules and practices must not unduly affect the structure and composition of organizations. • However, there are acceptable limitations as regards : • The required minimum number of members • Certain categories of workers to whom membership is limited to the first level as long as they can organise.

38. The right to establish and joinorganizations of one’s own choosing • Legislation and practices must not unduly affect organizational plurality and diversity: • Monopoly must not be imposed by law or practice. • Systems prohibiting union security practices as well as systems which permit such practices, are compatible with FOA principles. • However, such systems should take effect trough collective agreements.

39. The right to draw up the organization'srules in full freedom (C. 87, art. 3) • Permissible requirements: The law should only lay down formal requirements with respect to an organizations’ founding instruments (constitution and by-laws), such as: • A requirement that the constitution be approved by a majority of members present at a duly constituted meeting; • A requirement that the purpose of the organization be lawful and related to the pursuit of the social and economic interests of its members. • Unacceptable requirements: Would be incompatible with this principle: • The approvalof by-laws by public authorities or by an already existing trade union; • An imposed model constitution; • The right of public authorities to require constitutional amendments beyond formal changes.

40. The right to draw up the organization'srules in full freedom (C. 87, art. 3) • Necessary safeguards: • The national legal framework should contain an appeal procedure to an independent and impartial body for cases of refusal to recognize the legitimacy of an organization’s founding documents.

41. The right to elect an organization’s representatives in full freedom (C. 87, art. 3) • No control must be exercised by public authorities over the election process. • There must be no arbitrary interference by public authorities in the election process. • The elections results should not be subject to the approval of public authorities. A recourse to an independent and impartial judicial body should be available for possible instances of contested results. • Conditions of eligibility should be provided to avoid situations where qualified persons would be disqualified.

42. The right to elect an organization’s representatives in full freedom (C. 87, art. 3) • Likely violation of FOA principles if a law: • Requires that all candidates belong to a certain occupation or a certain enterprise; • Requires that all candidates be nationals of the country. (A requirement of a reasonable period of residence may however be deemed reasonable.) • Prohibits re-election; • Excludes candidates because of their political beliefs or criminal records.

43. The right to administer the organizationand to conduct its activities in full freedom(C. 87, art. 3) • The right extends to financial autonomy and independence: • No prior authorization to receive funds • The protection of workers’ and employers’ organizations assets must be guaranteed. • Right to privacy of the organization: • Inviolability of union premises, correspondence and communications. • Organizations must be able to hold congresses and meetings without interference.

44. The right of organizations to formulatetheir programmes (C. 87, art. 3) • The right of organizations to formulate their programmes include: • The right to hold meetings; • The right of trade union representatives to access the work place with due respect for property and management rights (i.e., at least outside working hours in standards cases, and during working hours in remote areas under terms of consent orders); • The right to communicate with management; • The right to obtain information; • The right to present a list of grievances.

45. The right to organize (C. 87, art. 5: Higher level organizations) • The right to establish federations and confederations and to affiliate with international organizations (C. 87, art. 5): • Higher level organizations are entitled to the same rights accorded to first-level organizations. • This includes the right to be free from interference, which extends to federations and confederations of trade unions as well as to international organizations.

46. The right to organize (C. 87, art. 5: Higher level organizations) • At the national level, would be incompatible with the principle of non-interference: • The requirement of an excessively large number of member organizations; • A prohibition on the establishment of more than one confederation per occupation, branch of activity or region; • The imposition of a monopoly at the federal or confederal level.

47. The right to organize (C. 87, art 5:Higher level organizations) • At the international level would be incompatible with the principle of non-interference: • The requirement that only a single, named national organization permitted to affiliate internationally; • A prohibition placed on international affiliation; • The requirement of a prior authorization for international affiliation; • Restrictions or conditions placed on assistance (including financial), communications or contacts resulting from international affiliations.

48. The right to organize(C.87, art. 4: Dissolution) • The dissolution or suspension of organizations by administrative authorities is one of the most extreme forms of interference by public authorities. • This extends to decisions taken by public authorities that lead to de facto dissolution (cancellation of registration or of legal personality, depriving workers’ and employers’ organizations of their financial assets).

49. The right to organize(C.87, art. 4: Dissolution) • The principle of non-interference applies to the the dissolution or suspension of organizations (art. 4) • If administrative authorities are empowered to order the dissolution of existing organizations, such dissolution must be subject to a right of appeal to independent courts with suspensive effect (the dissolution order must be suspended pending appeal).

50. Civil servants andthe right to organize • All civil servants have the right to organize. • All civil servants have the right to establish organizations of their own choosing. • All civil servants have to right to establish organizations without previous authorization. • The only exceptions are armed forces and the police, and the scope of such exceptions is interpreted narrowly.